Between Facts and Norms - Contributions to a ... - Blogs Unpad

202Chapter 5out the internal normative character of legal rules and the systematicconstruction of a system of rules. This system is supposed tofacilitate the consistency of rule-bound decisions and render thelaw largely independent of politics. In contrast to hermeneuticists,positivists emphasize the closed character and autonomy of a legalsystem impermeable to extralegal principles. Thus the rationalityproblem is resolved in a way that gives priority to a narrowlyconceived institutional history purged of any suprapositive validitybasis. A "basic norm" or "rule of recognition" enables one todetermine unambiguously which norms belong to valid law (geltendenRecht) at a given point in time.An autonomous legal system of this sort is differentiated intoprimary rules for regulating behavior and secondary rules for theself-referential production of norms. If we presuppose that law isautonomous in this way, then the validity of legal regulations ismeasured solely by the observance oflegally stipulated proceduresoflawmaking. This legitimation through the legality of the lawmakingprocedure privileges the pedigree-namely, the correct processof enactment-over the rational justification of a norm'scontent: rules are valid because they are properly enacted by thecompetent institutions. The legitimation of the legal order as awhole shifts to its origin, that is, to a basic norm or rule ofrecognition that legitimates everythingwithou t itselfbeing capableof rational justification; as part of a historical form oflife , it must befactually accepted as settled custom. Hart makes this plausible bydrawing on Wittgenstein's concept of a language game. Like thegrammar of a language game, the rule of recognition is rooted ina practice that, though described externally as a fact, is taken by theparticipants themselves as self-evidently valid.12Tying the validity oflaw to its genesis allows only an asymmetricalsolution to the rationality problem. Reason or justice is to a certainextent subordinated to history. Hence the positivist reading ofjudicial decision making privileges the certainty guarantee at theexpense of the rightness guarantee. The priority of legal certaintyis evident in the positivist treatment of "hard cases." In these cases,the hermeneutical problem becomes especially clear: how can theappropriateness of unavoidably selective decisions be justified?Positivism plays down this problem, analyzing its effects as symp-